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THE WORKS
OF
THE RIGHT HONOURABLE
EDMUND BURKE
IN TWELVE VOLUMES
VOLUME THE ELEVENTH
[Illustration: Burke Coat of Arms.]
LONDON
JOHN C. NIMMO
14, KING WILLIAM STREET, STRAND, W.C.
MDCCCLXXXVII
CONTENTS OF VOL. XI.
PAGE
REPORT FROM THE COMMITTEE OF THE HOUSE OF COMMONS, APPOINTED TO
INSPECT THE LORDS' JOURNALS IN RELATION TO THEIR PROCEEDINGS ON
THE TRIAL OF WARREN HASTINGS, ESQUIRE. WITH AN APPENDIX. ALSO,
REMARKS IN VINDICATION OF THE SAME FROM THE ANIMADVERSIONS OF
LORD THURLOW. 1794. 1
SPEECHES IN THE IMPEACHMENT OF WARREN HASTINGS, ESQUIRE,
LATE GOVERNOR-GENERAL OF BENGAL. (CONTINUED.)
SPEECH IN GENERAL REPLY.
FIRST DAY: WEDNESDAY, MAY 28, 1794 157
SECOND DAY: FRIDAY, MAY 30 227
THIRD DAY: TUESDAY, JUNE 3 300
FOURTH DAY: THURSDAY, JUNE 5 372
REPORT
FROM THE
COMMITTEE OF THE HOUSE OF COMMONS,
APPOINTED
TO INSPECT THE LORDS' JOURNALS
IN RELATION TO THEIR PROCEEDINGS
ON THE TRIAL OF
WARREN HASTINGS, ESQUIRE.
WITH AN APPENDIX.
ALSO,
REMARKS IN VINDICATION OF THE SAME FROM THE ANIMADVERSIONS OF LORD
THURLOW.
1794.
NOTE.
In the sixth article Mr. Burke was supported, on the 16th of
February, 1790, by Mr. Anstruther, who opened the remaining part of
this article and part of the seventh article, and the evidence was
summed up and enforced by him. The rest of the evidence upon the
sixth, and on part of the seventh, eighth, and fourteenth articles,
were respectively opened and enforced by Mr. Fox and other of the
Managers, on the 7th and 9th of June, in the same session. On the
23d May, 1791, Mr. St. John opened the fourth article of charge; and
evidence was heard in support of the same. In the following sessions
of 1792, Mr. Hastings's counsel were heard in his defence, which was
continued through the whole of the sessions of 1793.
On the 5th of March, 1794, a select committee was appointed by the
House of Commons to inspect the Lords' Journals, in relation to
their proceeding on the trial of Warren Hastings, Esquire, and to
report what they found therein to the House, (which committee were
the managers appointed to make good the articles of impeachment
against the said Warren Hastings, Esquire,) and who were afterwards
instructed to report the several matters which had occurred since
the commencement of the prosecution, and which had, in their
opinion, contributed to the duration thereof to that time, with
their observations thereupon. On the 30th of April, the following
Report, written by Mr. Burke, and adopted by the Committee, was
presented to the House of Commons, and ordered by the House to be
printed.
REPORT
Made on the 30th April, 1794, from the Committee of the House of
Commons, appointed to inspect the Lords' Journals, in relation to
their proceeding on the trial of Warren Hastings, Esquire, and to
report what they find therein to the House (which committee were
the managers appointed to make good the articles of impeachment
against the said Warren Hastings, Esquire); and who were afterwards
instructed to report the several matters which have occurred since
the commencement of the said prosecution, and which have, in their
opinion, contributed to the duration thereof to the present time,
with their observations thereupon.
Your Committee has received two powers from the House:--The first, on
the 5th of March, 1794, to inspect the Lords' Journals, in relation to
their proceedings on the trial of Warren Hastings, Esquire, and to
report what they find therein to the House. The second is an
instruction, given on the 17th day of the same month of March, to this
effect: That your Committee do report to this House the several matters
which have occurred since the commencement of the said prosecution, and
which have, in their opinion, contributed to the duration thereof to the
present time, with their observations thereupon.
Your Committee is sensible that the duration of the said trial, and the
causes of that duration, as well as the matters which have therein
occurred, do well merit the attentive consideration of this House. We
have therefore endeavored with all diligence to employ the powers that
have been granted and to execute the orders that have been given to us,
and to report thereon as speedily as possible, and as fully as the time
would admit.
Your Committee has considered, first, the mere fact of the duration of
the trial, which they find to have commenced on the 13th day of
February, 1788, and to have continued, by various adjournments, to the
said 17th of March. During that period the sittings of the Court have
occupied one hundred and eighteen days, or about one third of a year.
The distribution of the sitting days in each year is as follows.
Days.
In the year 1788, the Court sat 35
1789, 17
1790, 14
1791, 5
1792, 22
1793, 22
1794, to the 1st of March, inclusive 3
----
Total 118
Your Committee then proceeded to consider the causes of this duration,
with regard to time as measured by the calendar, and also as measured by
the number of days occupied in actual sitting. They find, on examining
the duration of the trial with reference to the number of years which
it has lasted, that it has been owing to several prorogations and to one
dissolution of Parliament; to discussions which are supposed to have
arisen in the House of Peers on the legality of the continuance of
impeachments from Parliament to Parliament; that it has been owing to
the number and length of the adjournments of the Court, particularly the
adjournments on account of the Circuit, which adjournments were
interposed in the middle of the session, and the most proper time for
business; that it has been owing to one adjournment made in consequence
of a complaint of the prisoner against one of your Managers, which took
up a space of ten days; that two days' adjournments were made on account
of the illness of certain of the Managers; and, as far as your Committee
can judge, two sitting days were prevented by the sudden and unexpected
dereliction of the defence of the prisoner at the close of the last
session, your Managers not having been then ready to produce their
evidence in reply, nor to make their observations on the evidence
produced by the prisoner's counsel, as they expected the whole to have
been gone through before they were called on for their reply. In this
session your Committee computes that the trial was delayed about a week
or ten days. The Lords waited for the recovery of the Marquis
Cornwallis, the prisoner wishing to avail himself of the testimony of
that noble person.
With regard to the one hundred and eighteen days employed in actual
sitting, the distribution of the business was in the manner following.
There were spent,--
Days
In reading the articles of impeachment, and the
defendant's answer, and in debate on the mode
of proceeding 3
Opening speeches, and summing up by the Managers 19
Documentary and oral evidence by the Managers 51
Opening speeches and summing up by the defendant's
counsel, and defendant's addresses
to the Court 22
Documentary and oral evidence on the part of the
defendant 23
----
118
The other head, namely, that the trial has occupied one hundred and
eighteen days, or nearly one third of a year. This your Committee
conceives to have arisen from the following immediate causes. First, the
nature and extent of the matter to be tried. Secondly, the general
nature and quality of the evidence produced: it was principally
documentary evidence, contained in papers of great length, the whole of
which was often required to be read when brought to prove a single short
fact. Under the head of evidence must be taken into consideration the
number and description of the witnesses examined and cross-examined.
Thirdly, and principally, the duration of the trial is to be attributed
to objections taken by the prisoner's counsel to the admissibility of
several documents and persons offered as evidence on the part of the
prosecution. These objections amounted to sixty-two: they gave rise to
several debates, and to twelve references from the Court to the Judges.
On the part of the Managers, the number of objections was small; the
debates upon them were short; there was not upon them any reference to
the Judges; and the Lords did not even retire upon any of them to the
Chamber of Parliament.
This last cause of the number of sitting days your Committee considers
as far more important than all the rest. The questions upon the
admissibility of evidence, the manner in which these questions were
stated and were decided, the modes of proceeding, the great uncertainty
of the principle upon which evidence in that court is to be admitted or
rejected,--all these appear to your Committee materially to affect the
constitution of the House of Peers as a court of judicature, as well as
its powers, and the purposes it was intended to answer in the state. The
Peers have a valuable interest in the conservation of their own lawful
privileges. But this interest is not confined to the Lords. The Commons
ought to partake in the advantage of the judicial rights and privileges
of that high court. Courts are made for the suitors, and not the suitors
for the court. The conservation of all other parts of the law, the whole
indeed of the rights and liberties of the subject, ultimately depends
upon the preservation of the Law of Parliament in its original force and
authority.
Your Committee had reason to entertain apprehensions that certain
proceedings in this trial may possibly limit and weaken the means of
carrying on any future impeachment of the Commons. As your Committee
felt these apprehensions strongly, they thought it their duty to begin
with humbly submitting facts and observations on the proceedings
concerning evidence to the consideration of this House, before they
proceed to state the other matters which come within the scope of the
directions which they have received.
To enable your Committee the better to execute the task imposed upon
them in carrying on the impeachment of this House, and to find some
principle on which they were to order and regulate their conduct
therein, they found it necessary to look attentively to the jurisdiction
of the court in which they were to act for this House, and into its laws
and rules of proceeding, as well as into the rights and powers of the
House of Commons in their impeachments.
RELATION OF THE JUDGES, ETC., TO THE COURT OF PARLIAMENT.
Upon examining into the course of proceeding in the House of Lords, and
into the relation which exists between the Peers, on the one hand, and
their attendants and assistants, the Judges of the Realm, Barons of the
Exchequer of the Coif, the King's learned counsel, and the Civilians
Masters of the Chancery, on the other, it appears to your Committee that
these Judges, and other persons learned in the Common and Civil Laws,
are no integrant and necessary part of that court. Their writs of
summons are essentially different; and it does not appear that they or
any of them have, or of right ought to have, a deliberative voice,
either actually or virtually, in the judgments given in the High Court
of Parliament. Their attendance in that court is solely ministerial; and
their answers to questions put to them are not to be regarded as
declaratory of the Law of Parliament, but are merely consultory
responses, in order to furnish such matter (to be submitted to the
judgment of the Peers) as may be useful in reasoning by analogy, so far
as the nature of the rules in the respective courts of the learned
persons consulted shall appear to the House to be applicable to the
nature and circumstances of the case before them, and no otherwise.[1]
JURISDICTION OF THE LORDS.
Your Committee finds, that, in all impeachments of the Commons of Great
Britain for high crimes and misdemeanors before the Peers in the High
Court of Parliament, the Peers are not triers or jurors only, but, by
the ancient laws and constitution of this kingdom, known by constant
usage, are judges both of law and fact; and we conceive that the Lords
are bound not to act in such a manner as to give rise to an opinion that
they have virtually submitted to a division of their legal powers, or
that, putting themselves into the situation of mere triers or jurors,
they may suffer the evidence in the cause to be produced or not produced
before them, according to the discretion of the judges of the inferior
courts.
LAW OF PARLIAMENT.
Your Committee finds that the Lords, in matter of appeal or impeachment
in Parliament, are not of right obliged to proceed according to the
course or rules of the Roman Civil Law, or by those of the law or usage
of any of the inferior courts in Westminster Hall, but by the law and
usage of Parliament. And your Committee finds that this has been
declared in the most clear and explicit manner by the House of Lords, in
the year of our Lord 1387 and 1388, in the 11th year of King Richard II.
Upon an appeal in Parliament then depending against certain great
persons, peers and commoners, the said appeal was referred to the
Justices, and other learned persons of the law. "At which time," it is
said in the record, that "the Justices and Serjeants, and others the
learned in the Law Civil, were charged, by order of the King our
sovereign aforesaid, to give their faithful counsel to the Lords of the
Parliament concerning the due proceedings in the cause of the appeal
aforesaid. The which Justices, Serjeants, and the learned in the law of
the kingdom, and also the learned in the Law Civil, have taken the same
into deliberation, and have answered to the said Lords of Parliament,
that they had seen and well considered the tenor of the said appeal; and
they say that the same appeal was neither made nor pleaded according to
the order which the one law or the other requires. Upon which the said
Lords of Parliament have taken the same into deliberation and
consultation, and by the assent of our said Lord the King, and of their
common agreement, it was declared, that, in so high a crime as that
which is charged in this appeal, which touches the person of our lord
the King, and the state of the whole kingdom, perpetrated by persons who
are peers of the kingdom, along with others, the cause shall not be
tried in any other place but in Parliament, nor by any other law than
the law and course of Parliament; and that it belongeth to the Lords of
Parliament, and to their franchise and liberty by the ancient custom of
the Parliament, to be judges in such cases, and in these cases to judge
by the assent of the King; and thus it shall be done in this case, by
the award of Parliament: because the realm of England has not been
heretofore, nor is it the intention of our said lord the King and the
Lords of Parliament that it ever should be governed by the Law Civil;
and also, it is their resolution not to rule or govern so high a cause
as this appeal is, which cannot be tried anywhere but in Parliament, as
hath been said before, by the course, process, and order used in any
courts or place inferior in the same kingdom; which courts and places
are not more than the executors of the ancient laws and customs of the
kingdom, and of the ordinances and establishments of Parliament. It was
determined by the said Lords of Parliament, by the assent of our said
lord the King, that this appeal was made and pleaded well and
sufficiently, and that the process upon it is good and effectual,
according to the law and course of Parliament; and for such they decree
and adjudge it."[2]
And your Committee finds, that toward the close of the same Parliament
the same right was again claimed and admitted as the special privilege
of the Peers, in the following manner:--"In this Parliament, all the
Lords then present, Spiritual as well as Temporal, claimed as their
franchise, that the weighty matters moved in this Parliament, and which
shall be moved in other Parliaments in future times, touching the peers
of the land, shall be managed, adjudged, and discussed by the course of
Parliament, and in no sort by the Law Civil, or by the common law of the
land, used in the other lower courts of the kingdom; which claim,
liberty, and franchise the King graciously allowed and granted to them
in full Parliament."[2]
Your Committee finds that the Commons, having at that time considered
the appeal above mentioned, approved the proceedings in it, and, as far
as in them lay, added the sanction of their accusation against the
persons who were the objects of the appeal. They also, immediately
afterwards, impeached all the Judges of the Common Pleas, the Chief
Baron of the Exchequer, and other learned and eminent persons, both
peers and commoners; upon the conclusion of which impeachments it was
that the second claim was entered. In all the transactions aforesaid the
Commons were acting parties; yet neither then nor ever since have they
made any objection or protestation, that the rule laid down by the Lords
in the beginning of the session of 1388 ought not to be applied to the
impeachments of commoners as well as peers. In many cases they have
claimed the benefit of this rule; and in all cases they have acted, and
the Peers have determined, upon the same general principles. The Peers
have always supported the same franchises; nor are there any precedents
upon the records of Parliament subverting either the general rule or the
particular privilege, so far as the same relates either to the course of
proceeding or to the rule of law by which the Lords are to judge.
Your Committee observes also, that, in the commissions to the several
Lords High Stewards who have been appointed on the trials of peers
impeached by the Commons, the proceedings are directed to be had
according to the law and custom of the kingdom, _and the custom of
Parliament_: which words are not to be found in the commissions for
trying upon indictments.
"As every court of justice," says Lord Coke, "hath laws and customs for
its direction, some by the Common Law, some by the Civil and Canon Law,
some by peculiar laws and customs, &c., so the High Court of Parliament
_suis propriis legibus et consuetudinibus subsistit_. It is by the _Lex
et Consuetudo Parliamenti_, that all weighty matters in any Parliament
moved, concerning the peers of the realm, or Commons in Parliament
assembled, ought to be determined, adjudged, and discussed, by the
course of the Parliament, and not by the Civil Law, nor yet by the
common laws of this realm used in more inferior courts." And after
founding himself on this very precedent of the 11th of Richard II., he
adds, _"This is the reason that Judges ought not to give any opinion of
a matter of Parliament, because it is not to be decided by the common
laws, but secundum Legem et Consuetudinem Parliamenti: and so the Judges
in divers Parliaments have confessed!"_[3]
RULE OF PLEADING.
Your Committee do not find that any rules of pleading, as observed in
the inferior courts, have ever obtained in the proceedings of the High
Court of Parliament, in a cause or matter in which the whole procedure
has been within their original jurisdiction. Nor does your Committee
find that any demurrer or exception, as of false or erroneous pleading,
hath been ever admitted to any impeachment in Parliament, as not coming
within the form of the pleading; and although a reservation or protest
is made by the defendant (matter of form, as we conceive) "to the
generality, uncertainty, and insufficiency of the articles of
impeachment," yet no objections have in fact been ever made in any part
of the record; and when verbally they have been made, (until this
trial,) they have constantly been overruled.
The trial of Lord Strafford[4] is one of the most important eras in the
history of Parliamentary judicature. In that trial, and in the
dispositions made preparatory to it, the process on impeachments was, on
great consideration, research, and selection of precedents, brought very
nearly to the form which it retains at this day; and great and important
parts of Parliamentary Law were then laid down. The Commons at that time
made new charges or amended the old as they saw occasion. Upon an
application from the Commons to the Lords, that the examinations taken
by their Lordships, at their request, might be delivered to them, for
the purpose of a more exact specification of the charge they had made,
on delivering the message of the Commons, Mr. Pym, amongst other things,
said, as it is entered in the Lords' Journals, "According to the clause
of reservation in the conclusion of their charge, they [the Commons]
will add to the charges, not to the matter in respect of comprehension,
extent, or kind, but only to reduce them to more particularities, that
the Earl of Strafford might answer with the more clearness and
expedition: _not that they are bound by this way of SPECIAL charge; and
therefore they have taken care in their House, upon protestation, that
this shall be no prejudice to bind them from proceeding in GENERAL in
other cases, and that they are not to be ruled by proceedings in other
courts, which protestation they have made for the preservation of the
power of Parliament; and they desire that the like care may be had in
your Lordships' House_."[5] This protestation is entered on the Lords'
Journals. Thus careful were the Commons that no exactness used by them
for a temporary accommodation, should become an example derogatory to
the larger rights of Parliamentary process.
At length the question of their being obliged to conform to any of the
rules below came to a formal judgment. In the trial of Dr. Sacheverell,
March 10th, 1709, the Lord Nottingham "desired their Lordships' opinion,
whether he might propose a question to the Judges _here_ [in Westminster
Hall]. Thereupon the Lords, being moved to adjourn, adjourned to the
House of Lords, and on debate," as appears by a note, "it was agreed
that the question should be proposed in Westminster Hall."[6]
Accordingly, when the Lords returned the same day into the Hall, the
question was put by Lord Nottingham, and stated to the Judges by the
Lord Chancellor: "Whether, by the _law of England_, and constant
practice in all prosecutions by _indictment and information_ for crimes
and misdemeanors by writing or speaking, the particular words supposed
to be written or spoken must not be expressly specified in the
indictment or information?" On this question the Judges, _seriatim_, and
in open court, delivered their opinion: the substance of which was,
"That, by the laws of England, and the constant practice in Westminster
Hall, the words ought to be expressly specified in the indictment or
information." Then the Lords adjourned, and did not come into the Hall
until the 20th. In the intermediate time they came to resolutions on the
matter of the question put to the Judges. Dr. Sacheverell, being found
guilty, moved in arrest of judgment upon two points. The first, which he
grounded on the opinion of the Judges, and which your Committee thinks
most to the present purpose, was, "That no entire clause, or sentence,
or expression, in either of his sermons or dedications, is particularly
set forth in his impeachment, which he has already heard the Judges
declare to be necessary in all cases of indictments or informations."[7]
On this head of objection, the Lord Chancellor, on the 23d of March,
agreeably to the resolutions of the Lords of the 14th and 16th of March,
acquainted Dr. Sacheverell, "That, on occasion of the question before
put to the Judges _in Westminster Hall_, and their answer thereto, their
Lordships had fully debated and considered of that matter, and had come
to the following resolution: 'That this House will proceed to the
determination of the impeachment of Dr. Henry Sacheverell, according to
the _law of the land, and the law and usage of Parliament_.' And
afterwards to this resolution: 'That, by _the law and usage of
Parliament_ in prosecutions for high crimes and misdemeanors by writing
or speaking, the particular words supposed to be criminal are _not
necessary_ to be expressly specified in such impeachment.' So that, in
their Lordships' opinion, the law and usage of the High Court of
Parliament being _a part of the law of the land_, and that usage not
requiring that words should be exactly specified in impeachments, the
answer of the Judges, which related only to the course of _indictments
and informations_, does not in the least affect your case."[8]
On this solemn judgment concerning the law and usage of Parliament, it
is to be remarked: First, that the impeachment itself is not to be
presumed inartificially drawn. It appears to have been the work of some
of the greatest lawyers of the time, who were perfectly versed in the
manner of pleading in the courts below, and would naturally have
imitated their course, if they had not been justly fearful of setting an
example which might hereafter subject the plainness and simplicity of a
Parliamentary proceeding to the technical subtilties of the inferior
courts. Secondly, that the question put to the Judges, and their answer,
were strictly confined to the law and practice below; and that nothing
in either had a tendency to their delivering an opinion concerning
Parliament, its laws, its usages, its course of proceeding, or its
powers. Thirdly, that the motion in arrest of judgment, grounded on the
opinion of the Judges, was made only by Dr. Sacheverell himself, and not
by his counsel, men of great skill and learning, who, if they thought
the objections had any weight, would undoubtedly have made and argued
them.
Here, as in the case of the 11th King Richard II., the Judges declared
unanimously, that such an objection would be fatal to such a pleading in
any indictment or information; but the Lords, as on the former occasion,
overruled this objection, and held the article to be good and valid,
notwithstanding the report of the Judges concerning the mode of
proceeding in the courts below.
Your Committee finds that a protest, with reasons at large, was entered
by several lords against this determination of their court.[9] It is
always an advantage to those who protest, that their reasons appear upon
record; whilst the reasons of the majority, who determine the question,
do not appear. This would be a disadvantage of such importance as
greatly to impair, if not totally to destroy, the effect of precedent as
authority, if the reasons which prevailed were not justly presumed to be
more valid than those which have been obliged to give way: the former
having governed the final and conclusive decision of a competent court.
But your Committee, combining the fact of this decision with the early
decision just quoted, and with the total absence of any precedent of an
objection, before that time or since, allowed to pleading, or what has
any relation to the rules and principles of pleading, as used in
Westminster Hall, has no doubt that the House of Lords was governed in
the 9th of Anne by the very same principles which it had solemnly
declared in the 11th of Richard II.
But besides the presumption in favor of the reasons which must be
supposed to have produced this solemn judgment of the Peers, contrary to
the practice of the courts below, as declared by all the Judges, it is
probable that the Lords were unwilling to take a step which might admit
that anything in that practice should be received as their rule. It must
be observed, however, that the reasons against the article alleged in
the protest were by no means solely bottomed in the practice of the
courts below, as if the main reliance of the protesters was upon that
usage. The protesting minority maintained that it was not agreeable to
_several precedents in Parliament_; of which they cited many in favor
of their opinion. It appears by the Journals, that the clerks were
ordered to search for precedents, and a committee of peers was appointed
to inspect the said precedents, and to report upon them,--and that they
did inspect and report accordingly. But the report is not entered on the
Journals. It is, however, to be presumed that the greater number and the
better precedents supported the judgment. Allowing, however, their
utmost force to the precedents there cited, they could serve only to
prove, that, in the case of _words_, (to which alone, and not the case
of a _written_ libel, the precedents extended,) such a special averment,
according to the tenor of the words, had been used; but not that it was
necessary, or that ever any plea had been rejected upon such an
objection. As to the course of Parliament, resorted to for authority in
this part of the protest, the argument seems rather to affirm than to
deny the general proposition, that its own course, and not that of the
inferior courts, had been the rule and law of Parliament.
As to the objection, taken in the protest, drawn from natural right, the
Lords knew, and it appears in the course of the proceeding, that the
whole of the libel had been read at length, as appears from p. 655 to p.
666.[10] So that Dr. Sacheverell had _substantially_ the same benefit of
anything which could be alleged in the extenuation or exculpation as if
his libellous sermons had been entered _verbatim_ upon the recorded
impeachment. It was adjudged sufficient to state the crime _generally_
in the impeachment. The libels were given _in evidence_; and it was not
then thought of, that nothing should be given in evidence which was not
specially charged in the impeachment.
But whatever their reasons were, (great and grave they were, no doubt,)
such as your Committee has stated it is the _judgment_ of the Peers on
the Law of Parliament, as a part of the law of the land. It is the more
forcible as concurring with the judgment in the 11th of Richard II., and
with the total silence of the Rolls and Journals concerning any
objection to pleading ever being suffered to vitiate an impeachment, or
to prevent evidence being given upon it, on account of its generality,
or any other failure.
Your Committee do not think it probable, that, even before this
adjudication, the rules of pleading below could ever have been adopted
in a Parliamentary proceeding, when it is considered that the several
statutes of Jeofails, not less than twelve in number,[11] have been made
for the correction of an over-strictness in pleading, to the prejudice
of substantial justice: yet in no one of these is to be discovered the
least mention of any proceeding in Parliament. There is no doubt that
the legislature would have applied its remedy to that grievance in
Parliamentary proceedings, if it had found those proceedings embarrassed
with what Lord Mansfield, from the bench, and speaking of the matter of
these statutes, very justly calls "disgraceful subtilties."
What is still more strong to the point, your Committee finds that in the
7th of William III. an act was made for the regulating of trials for
treason and misprision of treason, containing several regulations for
reformation of proceedings at law, both as to matters of form and
substance, as well as relative to evidence. It is an act thought most
essential to the liberty of the subject; yet in this high and critical
matter, so deeply affecting the lives, properties, honors, and even the
inheritable blood of the subject, the legislature was so tender of the
high powers of this high court, deemed so necessary for the attainment
of the great objects of its justice, so fearful of enervating any of its
means or circumscribing any of its capacities, even by rules and
restraints the most necessary for the inferior courts, that they guarded
against it by an express proviso, "that neither this act, nor anything
therein contained, shall any ways extend to _any impeachment or other
proceedings in Parliament, in any land whatsoever_."[12]
CONDUCT OF THE COMMONS IN PLEADING.
This point being thus solemnly adjudged in the case of Dr. Sacheverell,
and the principles of the judgment being in agreement with the whole
course of Parliamentary proceedings, the Managers for this House have
ever since considered it as an indispensable duty to assert the same
principle, in all its latitude, upon all occasions on which it could
come in question,--and to assert it with an energy, zeal, and
earnestness proportioned to the magnitude and importance of the interest
of the Commons of Great Britain in the religious observation of the
rule, _that the Law of Parliament, and the Law of Parliament only,
should prevail in the trial of their impeachments_.
In the year 1715 (1 Geo. I.) the Commons thought proper to impeach of
high treason the lords who had entered into the rebellion of that
period. This was about six years after the decision in the case of
Sacheverell. On the trial of one of these lords, (the Lord Wintoun,[13])
after verdict, the prisoner moved in arrest of judgment, and excepted
against the impeachment for error, on account of the treason therein
laid "not being described with sufficient certainty,--the day on which
the treason was committed not having been alleged." His counsel was
heard to this point. They contended, "that the forfeitures in cases of
treason are very great, and therefore they humbly conceived that the
accusation ought to contain all the certainty it is capable of, that the
prisoner may not by _general allegations_ be rendered incapable to
defend himself in a case which may prove fatal to him: that they would
not trouble their Lordships with citing authorities; for they believed
there is not one gentleman of the long robe but will agree that an
indictment for any capital offence to be erroneous, if the offence be
not alleged to be committed on a certain day: that this impeachment set
forth only that in or about the months of September, October, or
November, 1715, the offence charged in the impeachment had been
committed." The counsel argued, "that a proceeding by impeachment is a
proceeding at the Common Law, for _Lex Parliamentaria_ is a part of
Common Law, and they submitted whether there is not the same certainty
required in one method of proceeding at Common Law as in another."
The matter was argued elaborately and learnedly, not only on the general
principles of the proceedings below, but on the inconvenience and
possible hardships attending this uncertainty. They quoted Sacheverell's
case, in whose impeachment "the precise days were laid when the Doctor
preached each of these two sermons; and that by a like reason a certain
day ought to be laid in the impeachment when this treason was committed;
and that the authority of Dr. Sacheverell's case seemed so much stronger
than the case in question as the crime of treason is higher than that of
a misdemeanor."
Here the Managers for the Commons brought the point a second time to an
issue, and that on the highest of capital cases: an issue, the event of
which was to determine forever whether their impeachments were to be
regulated by the law as understood and observed in the inferior courts.
Upon the usage below there was no doubt; the indictment would
unquestionably have been quashed. But the Managers for the Commons stood
forth upon this occasion with a determined resolution, and no less than
four of them _seriatim_ rejected the doctrine contended for by Lord
Wintoun's counsel. They were all eminent members of Parliament, and
three of them great and eminent lawyers, namely, the then
Attorney-General, Sir William Thomson, and Mr. Cowper.
Mr. Walpole said,--"Those learned gentlemen [Lord Wintoun's counsel]
_seem to forget in what court they are_. They have taken up so much of
your Lordships' time in quoting of authorities, and using arguments to
show your Lordships what would quash an indictment in _the courts
below_, that they seemed to forget they are now in _a Court of
Parliament, and on an impeachment of the Commons of Great Britain_. For,
should the Commons admit all that they have offered, it will not follow
that the impeachment of the Commons is insufficient; and I must observe
to your Lordships, that neither of the learned gentlemen have offered to
produce one instance relative to an impeachment. I mean to show that the
sufficiency of an impeachment was never called in question for the
generality of the charge, or that any instance of that nature was
offered at before. The Commons don't conceive, that, if this exception
would quash an indictment, it would therefore make the impeachment
insufficient. I hope it never will be allowed here as a reason, that
what quashes an indictment in the courts below will make insufficient an
impeachment brought by the Commons of Great Britain."
The Attorney-General supported Mr. Walpole in affirmance of this
principle. He said,--"I would follow the steps of the learned gentleman
who spoke before me, and I think he has given a good answer to these
objections. I would take notice that we are upon an impeachment, not
upon an indictment. The courts below have set forms to themselves, which
have prevailed for a long course of time, and thereby are become the
forms by which those courts are to govern themselves; but it never was
thought that the forms of those courts had any influence on the
proceedings of Parliament. In Richard II.'s time, it is said in the
records of Parliament, that proceedings in Parliament are not to be
governed by the forms of Westminster Hall. We are in the case of an
impeachment, and in the Court of Parliament. Your Lordships have already
given judgment against six upon this impeachment, and it is warranted by
the precedents in Parliament; therefore we insist that the articles are
good in substance."
Mr. Cowper.--"They [the counsel] cannot but know that the usages of
Parliaments are part of the laws of the land, although they differ in
many instances from the Common Law, as practised in the inferior courts,
in point of form. My Lords, if the Commons, in preparing articles of
impeachment, should govern themselves by precedents of indictments, in
my humble opinion they would depart from the ancient, nay, the constant,
usage and practice of Parliament. It is well known that the form of an
impeachment has very little resemblance to that of an indictment; and I
believe the Commons will endeavor to preserve the difference, by
adhering to their own precedents."
Sir William Thomson.--"We must refer to the forms and proceedings in the
Court of Parliament, and which must be owned to be part of the law of
the land. It has been mentioned already to your Lordships, that the
precedents in impeachments are not so nice and precise in form as in the
inferior courts; and we presume your Lordships will be governed by the
forms of your own court, (especially forms that are not essential to
justice,) as the courts below are by theirs: which courts differ one
from the other in many respects as to their forms of proceedings, and
the practice of each court is esteemed as the law of that court."
The Attorney-General in reply maintained his first doctrine. "There is
no uncertainty; in it _that can be to the prejudice of the prisoner_: we
insist, it is according to _the forms of Parliament_: he has pleaded to
it, and your Lordships have found him guilty."
The opinions of the Judges were taken in the House of Lords, on the 19th
of March, 1715, upon two questions which had been argued in arrest of
judgment, grounded chiefly on the practice of the courts below. To the
first the Judges answered,--"_It is necessary_ that there be a _certain_
day laid in such indictments, on which the fact is alleged to be
committed; and that alleging in such indictments that the fact was
committed at or about a certain day would not be sufficient." To the
second they answered, "that, although a day certain, when the fact is
supposed to be done, be alleged in such indictments, yet it is not
necessary upon the trial to prove the fact to be committed upon _that
day_; but it is sufficient, if proved to be done _on any other day
before_ the indictment found."
Then it was "agreed by the House, and ordered, that the Lord High
Steward be directed to acquaint the prisoner at the bar in Westminster
Hall, 'that the Lords have considered of the matters moved in arrest of
judgment, and are of opinion that they are not sufficient to arrest the
same, but that the _impeachment_ is sufficiently certain in point of
time _according to the form of impeachments in Parliament_.'"[14]
On this final adjudication, (given after solemn argument, and after
taking the opinion of the Judges,) in affirmance of the Law of
Parliament against the undisputed usage of the courts below, your
Committee has to remark,--1st, The preference of the custom of
Parliament to the usage below. By the very latitude of the charge, the
Parliamentary accusation gives the prisoner fair notice to prepare
himself upon all points: whereas there seems something insnaring in the
proceedings upon indictment, which, fixing the specification of a day
certain for the treason or felony as absolutely necessary in the
charge, gives notice for preparation only on _that day_, whilst the
prosecutor has the whole range of time antecedent to the indictment to
allege and give evidence of facts against the prisoner. It has been
usual, particularly in later indictments, to add, "at several other
times"; but the strictness of naming one day is still necessary, and the
want of the larger words would not quash the indictment. 2dly, A
comparison of the extreme rigor and exactness required in the more
_formal_ part of the proceeding (the indictment) with the extreme laxity
used in the _substantial_ part (that is to say, the evidence received to
prove the fact) fully demonstrates that the partisans of those forms
would put shackles on the High Court of Parliament, with which they are
not willing, or find it wholly impracticable, to bind themselves. 3dly,
That the latitude of departure from the letter of the indictment (which
holds in other matters besides this) is in appearance much more contrary
to natural justice than anything which has been objected against the
evidence offered by your Managers, under a pretence that it exceeded the
limits of pleading. For, in the case of indictments below, it must be
admitted that the prisoner may be unprovided with proof of an alibi, and
other material means of defence, or may find some matters unlooked-for
produced against him, by witnesses utterly unknown to him: whereas
nothing was offered to be given in evidence, under any of the articles
of this impeachment, except such as the prisoner must have had perfect
knowledge of; the whole consisting of matters sent over by himself to
the Court of Directors, and authenticated under his own hand. No
substantial injustice or hardship of any kind could arise from our
evidence under our pleading: whereas in theirs very great and serious
inconveniencies might happen.
Your Committee has further to observe, that, in the case of Lord
Wintoun, as in the case of Dr. Sacheverell, the Commons had in their
Managers persons abundantly practised in the law, as used in the
inferior jurisdictions, who could easily have followed the precedents of
indictments, if they had not purposely, and for the best reasons,
avoided such precedents.
A great writer on the criminal law, Justice Foster, in one of his
Discourses,[15] fully recognizes those principles for which your
Managers have contended, and which have to this time been uniformly
observed in Parliament. In a very elaborate reasoning on the case of a
trial in Parliament, (the trial of those who had murdered Edward II.,)
he observes thus:--"It is _well known_, that, in _Parliamentary_
proceedings of this kind, _it is, and ever was_, sufficient that matters
appear with proper light and certainty to _a common understanding_,
without that minute exactness which is required in criminal proceedings
in Westminster Hall. In these cases the rule has always been, _Loquendum
ut vulgus_." And in a note he says,--"In the proceeding against
Mortimer, in this Parliament, _so little regard was had to the forms
used in legal proceedings_, that he who had been frequently summoned to
Parliament as a baron, and had lately been created Earl of March, is
styled through the whole record merely Roger de Mortimer."
The departure from the common forms in the first case alluded to by
Foster (viz., the trial of Berkeley, Maltravers, &c., for treason, in
the murder of Edward II.[16]) might be more plausibly attacked, because
they were tried, though in Parliament, by a jury of freeholders: which
circumstance might have given occasion to justify a nearer approach to
the forms of indictments below. But no such forms were observed, nor in
the opinion of this able judge ought they to have been observed.
PUBLICITY OF THE JUDGES' OPINIONS.
It appears to your Committee, that, from the 30th year of King Charles
II. until the trial of Warren Hastings, Esquire, in all trials in
Parliament, as well upon impeachments of the Commons as on indictments
brought up by _Certiorari_, when any matter of law hath been agitated at
the bar, or in the course of trial hath been stated by any lord in the
court, it hath been the prevalent custom to state the same in open
court. Your Committee has been able to find, since that period, no more
than one precedent (and that a precedent rather in form than in
substance) of the opinions of the Judges being taken privately, except
when the case on both sides has been closed, and the Lords have retired
to consider of their verdict or of their judgment thereon. Upon the
soundest and best precedents, the Lords have improved on the principles
of publicity and equality, and have called upon the parties severally to
argue the matter of law, previously to a reference to the Judges, who,
on their parts, have afterwards, _in open court_, delivered their
opinions, often by the mouth of one of the Judges, speaking for himself
and the rest, and in their presence: and sometimes all the Judges have
delivered their opinion _seriatim_, (even when they have been unanimous
in it,) together with their reasons upon which their opinion had been
founded. This, from the most early times, has been the course in all
judgments in the House of Peers. Formerly even the record contained the
reasons of the decision. "The reason wherefore," said Lord Coke, "the
records of Parliaments have been so highly extolled is, that therein is
set down, in cases of difficulty, not only the judgment and resolution,
but _the reasons and causes of the same_ by so great advice."[17]